A Comparative Law Approach
Studies in Comparative Law and Legal Culture series
Edited by Jean-Bernard Auby, Emmanuel Breen and Thomas Perroud
Chapter 3: The conflicts of interests of public officers: Rules, checks and penalties
This chapter is divided into two parts. Each part is devoted to the same four issues: the definition of conflict of interests; the scope of the relative regulation; the remedies for such situations; and the control and punishment mechanisms. In the first part of the chapter, these issues are addressed in general terms. In the second part, they are considered in a comparative perspective: a number of observations are proposed on the basis of the analysis of some countries' laws. The first issue concerns the very notion of conflict of interests, as it is defined by the law concerning government ethics. In order to discuss this issue, it is necessary to provide at least one clarification for each of the terms that the expression consists of: 'conflict' and 'interests'. As for interests, it should be pointed out that not every contrast or tension between different interests is a legally relevant conflict of interest. Political activity necessarily requires comparing and balancing different interests. In fact, comparing and balancing are also required by every public function - including those of administrative agencies - and also by every private function, such as those of the contract representatives and of the company managers. For instance, when the government has to make choices concerning industrial development and to strike a balance between fostering the economy and protecting the environment, it is not enough just to talk about conflicts of interest.
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